Jul 31, 2019

The Not-So-SMART Act

Adam Thierer Senior Research Fellow , Andrea O'Sullivan Feature Writer

Addiction is a serious matter that deserves serious attention and treatment. It also deserves serious care: public officials should not too casually throw around the term to capitalize on moral panics about disfavored media technologies. Nor should they abuse this language to propose far-reaching, liberty-reducing measures.

Unfortunately, this seems to be the case with Senator Josh Hawley’s (R-MO) newly introduced “Social Media Addiction Reduction Technology (SMART) Act,” which would prohibit internet companies from “using practices that exploit human psychology of brain physiology to substantially impede freedom of choice.” It would also require companies to “take measures to mitigate the risks of internet addiction and psychological exploitation.”

Hawley’s highly technocratic bill identifies and prohibits a few specific features. On the chopping block are infinite scrolling, video autoplay, and “gamification” features like offering badges or streaks for accomplishing certain feats. The bill would also require that social media companies build default time limits and pop-up notifications telling users how long they’ve been on a platform within six months of the bill passing. Weirdly, the bill specifies a time limit of 30 minutes on all social media platforms on all devices per day, after which point they will be locked out. The user would be able to raise that limit through platform settings, but it would reset to 30 minutes at the beginning of each month.

It is interesting that Hawley is targeting these specific features, since the bill itself admits a certain ignorance of the science of this alleged addiction. Section 6 of the SMART Act commissions a report on internet addiction to better understand “the processes through which social media companies…[exploit] human psychology and brain physiology.” 

Perhaps lawmakers should not legislate a top-down, command-and control regulatory regime before they actually understand the problem. The research on internet addiction so far suggests that the issue may be overblown. For instance, one study of over 10,000 adolescents in the Proceedings of the National Academy of Sciences found little evidence that “addictive” technology use is harming the youth; the few slight negative effects were indistinguishable from statistical noise.

Banning these features would be unfair to the many happy users who are not “addicted” to these technologies. For instance, the free language learning platform Duolingo offers badges to users who complete lessons for seven days in a row. This streak function does not “substantially increase access to new or additional services, content or functionality,” so it could be a no-no under the SMART Act. (Since Duolingo offers forums for users to ask questions and practice the language, it could qualify as a regulated “social media platform” under the law.)

Is that sensible? In this instance, incentivizing more platform activity is probably a good thing, since it encourages people to get better at learning a language. And is this always such a bad thing on a social media platform? Snapchat’s streak function may help people stay more in touch than they otherwise might be. Should Sen. Hawley really be the judge of what’s socially beneficial?

We can think of several other examples. Parents who show their children pre-approved Sesame Street videos on YouTube may find autoplay a godsend, since it keeps their young ones occupied while they try to catch up on the laundry. Grandparents keeping tabs on their loved ones at college may love infinitely scrolling through their photos and posts. And not everyone is adept at managing their social media settings. Hawley’s “time use limit” could lock them out of their accounts if they forget to reset the default each month.

Clearly, such measures could create many downsides for users. But even if we knew the targeted practices led to addictive behavior, there are two better approaches available that would not impart the collateral damage of the Hawley measure.

First, the Federal Trade Commission (FTC) and states already possess broad authority to police “unfair and deceptive practices” by companies. Such general-purpose consumer protection laws are already well equipped to address these matters. They are superior to Hawley’s approach in that they do not preemptively forbid specific features and services that may have benefits. 

Second, education and treatment options are available or could be expanded to address actual addictive behavior. As with earlier media panics over television-watching, video game-playing, or Internet usage, censorship was never the best option. 

Moreover, these platforms and forms of content are constitutionally protected by the First Amendment. Education, awareness-building, and user empowerment efforts will, therefore, be the more sensible solutions. In fact, five online safety task forces that were formed to address online safety concerns already reached that exact conclusion

And let’s not forget that many of these features already have user controls. Apple offers a Screen Time service to track device usage; other Android apps do the same. It is very easy to turn off YouTube’s autoplay. Many websites allow users to turn off infinite scrolling, and there are ways to get around it on the websites that don’t. 

The SMART Act is only the latest development in Sen. Hawley’s anti-social media tear. It began in May, when he published a hotly-worded USA Today op-ed arguing that, “social media wastes our time and resources,” and is “a field of little productive value” that have only “given us an addiction economy.” 

He wrote that sites like Facebook, Instagram, and Twitter are “parasites” responsible for a variety of social problems (including an unproven link to increased suicide). He has even said that, “we’d be better off if Facebook disappeared.” (This did not stop him from sharing his own article on Facebook.)

Hawley also participated in last month’s White House “Social Media Summit,” during which he and President Trump lambasted various tech platforms for supposed bias against conservative voices, despite providing no evidence of a systemic problem.

Finally, during various Senate Judiciary Committee hearings, he and Senator Ted Cruz (R-TX) have tag-teamed in brow-beating various social media officials. As one left-leaning commentator has noted, Hawley and Cruz are essentially “working the refs” to at least get social media companies to give them more favorable treatment. As we noted in an earlier essay, this is a variant of “regulation by raised eyebrow,” or backdoor censorship.     

It’s shocking to see Hawley and Cruz using such tactics to bully social media operators, since conservatives typically oppose big government and heavy-handed regulation. Hawley has even introduced a bill with Cruz with the surreal title, “Ending Support for Internet Censorship Act.” In reality, the measure would do the exact opposite: empower government to harass social media companies for speech.

The proposal would mandate that FTC regulators evaluate whether platforms have engaged in “politically biased moderation,” which is defined as moderation practices that are supposedly, “designed to negatively affect” or those that “disproportionately [restrict] or promote access to … a political party, political candidate, or political viewpoint.” Social media providers would need to submit to regular FTC audits that ensure they are moderating content in a government-approved manner. If they didn’t, they would lose their platform liability protections, which could effectively run them out of business.

This sort of “Mother, may I?” regulatory regime is a direct assault on the “permissionless innovation” policy vision that has driven the amazing success of America’s tech sector over the past two decades. Hawley and Cruz would put an end to that by requiring innovators to get permission slip from DC bureaucrats before they could operate. 

In essence, Hawley and Cruz are combining core elements of the old Fairness Doctrine as well as “net neutrality” mandates. Traditionally, conservatives have decried these regulations and pushed for their repeal. Now, they greet such proposals with zeal because they apparently believe this is the way to address (unproven) systemic anti-conservative bias on social media platforms. Taken together, Hawley’s new bills would convert the FTC in the Federal Internet Commission and give it regulatory powers that exceed those the Federal Communications Commission had for traditional media companies.  It’s hard to understand how any of this is “conservative.”

To the extent that serious, clinically-diagnosed addiction is the problem, there are other public health approaches to getting those individuals help and treatment. But policymakers should not destroy innovation and limit user choices based upon the problems a small number of individuals have. We don't ban books for having too many pages or infinite sequels. What's next, bans on Netflix binges?

In the meantime, perhaps Sen. Hawley should return to the timeless first principles of personal and parental responsibility that conservatives have traditionally supported. 

Photo credit: Alex Wong/Getty Images.

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